EUPillar Draka NK Cables LTD, AB Sandvik International, VO Sembodja BV and Parc Healthcare International Limited v. Omnipol LTD - C.06.0409.N

Summary

The procedure is about the proportionate distribution of money belonging to the Central Bank of Iraq (CBI). The applicants seek to prevent the enforcement of a judgment of the Court of Amsterdam of 11 December 2003 which accorded almost half of the money belonging to the CBI to Omnipol Ltd, the defendant in this case. Omnipol Ltd obtained an exequatur on 29 June 2004. As a consequence, Omnipol Ltd and the applicants have competing claims of the assets of CBI in Belgium. The applicants appealed the exequatur decision in the name and on behalf of CBI. The applicants base their claim on a lateral action in conjunction with Art. 43(1) Brussels I Regulation. According to Article 1166 of the Belgian Civil Code, creditors can exercise all patrimonial rights of their debtors, in the name of and on behalf of those debtors. The Court of First Instance in Brussels dismissed their appeal on 14 November 2005, on the basis that the applicants weren’t “party” to the procedure within the meaning of Art. 43(1) Brussels I Regulation. The Court of Cassation was uncertain about the scope of the term “either party” as mentioned in Art. 43(1) Brussels I Regulation. The Court notes that the wording of Art. 43 differs from its counterpart, Art. 36, in the Brussels Convention. The question is whether this changed the meaning of Art. 43. Therefore the Court referred a question for a preliminary ruling by the Court of Justice. The Court wanted to know if a party, who is acting on behalf of its debtor, can be seen as a party within the meaning of Art. 43(1) Regulation 44/2001 even if this party was not party to the original procedure between the creditor and the debtor. In its preliminary ruling of 23 April 2009 in case C-167/2008, the ECJ decides that Article 43(1) of Regulation No 44/2001 must be interpreted as meaning that a creditor of a debtor cannot lodge an appeal against a decision on a request for a declaration of enforceability if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration of enforceability. That procedure constitutes an autonomous and complete system, independent of the legal systems of the Contracting States, including the matter of appeals. The rules relating to it must be interpreted strictly. It follows that Article 36 of the Brussels Convention excludes procedures whereby interested third parties may challenge an enforcement order under domestic law. The scope of the right conferred by Article 1166 of the Belgian Civil Code on the applicants, which at the hearing the Belgian Government stated could not be placed on the same footing as the debtor, is therefore irrelevant. Those observations are equally applicable to Regulation No 44/2001. In conformity with the interpretation given by the ECJ, the Court of Cassation dismisses the appeal and confirms the decision of the Brussels Court of First Instance of 14 November 2005.